Israel/Gaza: Operation ‘Cast Lead’: 22 days of death and destruction
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prompt reparation for harm suffered; and (c) Access to relevant information concerning violations and reparation mechanisms.”152 With respect to past human rights violations, states must ensure that the truth is told, that justice is done and that reparation is provided to all the victims.
5.4.1 JUSTICE
There are several possible methods for bringing to justice those responsible for crimes under international law, in proceedings which meet international standards of fairness and do not result in the death penalty. (a) By Israel: Each state party to the conflict has an obligation to investigate all crimes under international law and, whenever there is sufficient admissible evidence, prosecute the person suspected of those crimes. However, even though in theory it is possible for Palestinians residents in Gaza to lodge complaints in Israeli courts against Israeli forces for unlawful killings and other violations, in practice there is little if any chance that their complaints would be investigated and that the perpetrators would be brought to justice. (b) By the Palestinian side: The Gaza Strip falls under the jurisdiction of the PA according to the Oslo Accords (pursuant to which the PA was established). However, in June 2007, after armed confrontations with PA forces, Hamas established a de facto administration in Gaza and has since controlled internal affairs there, including the administration of justice. The Hamas de facto administration has neither prosecuted nor shown any intention to prosecute members of its armed wing or members of other armed groups responsible for firing rockets into southern Israel. On the contrary, during periods when they are not committed to a ceasefire with Israel, Hamas leaders promote such unlawful attacks. (c) By other states: Other states should exercise their obligations to conduct prompt, thorough, independent and impartial criminal investigations of anyone suspected of crimes under international law during the conflict. If there is sufficient admissible evidence, states should prosecute the suspect or extradite him or her to another state willing and able to do so in fair proceedings which do not result in the imposition of the death penalty or surrender him or her to an international criminal court which has jurisdiction. In addition to being obliged to exercise universal jurisdiction for grave breaches of the Geneva Conventions and of Additional Protocol I, as well as over torture, states are permitted to exercise universal jurisdiction for other crimes under international law. If there is sufficient admissible evidence states should also prosecute, extradite the suspects to another state willing and able to try them or surrender them to an international criminal court. (d) By the International Criminal Court (ICC): Israel has not ratified the Rome Statute. However, Israel could recognize the ICC’s jurisdiction on their territories by making a declaration under Article 12(3) of the Rome Statute, or the situation in Israel and the OPT could be specifically referred to the Court by the UN Security Council, in
Index: MDE 15/015/2009
Amnesty International July 2009